Tag: scholarship

Navigating with an Ocean Liner: The Clean Water Rule, Trump’s Executive Order, and the Future of “Waters of the United States”

Navigating with an Ocean Liner: The Clean Water Rule, Trump’s Executive Order, and the Future of “Waters of the United States”

By Kacy Manahan Kacy Manahan is a 3L at Lewis & Clark School of Law and Symposium Editor of Environmental Law. This post is part of the Environmental Law Review Syndicate. I. Introduction The scope of the Clean Water Act’s jurisdiction has been controversial throughout the statute’s […]

Funding Adaptation: Financing Resiliency Through Sea Level Derivatives

Funding Adaptation: Financing Resiliency Through Sea Level Derivatives

By Sevren Gourley Sevren Gourley is a 3L at the University of Virginia School of Law and Editor-in-Chief of the Virginia Environmental Law Journal. This post is part of the Environmental Law Review Syndicate. Read the original here and leave a comment. Coastal municipalities are struggling […]

Endangered Species Act to the Rescue? Climate Change Mitigation and Adaptation Under the ESA

Endangered Species Act to the Rescue? Climate Change Mitigation and Adaptation Under the ESA

By Olivia Bensinger

Olivia Bensinger is a 3L at Harvard Law School and managing editor of the Harvard Environmental Law Review.


This post is part of the Environmental Law Review Syndicate (ELRS).  Read the original at Ecology Law Quarterly’s website.

As we move further into the era of climate change, we often find ourselves looking in unlikely places for tools with which to combat global warming. The Endangered Species Act[1] (“ESA”) was enacted in 1973 for the singular purpose of protecting endangered and threatened species of animals and plants. The ESA has attacked this problem with all its might, and has been a strong force for ensuring the survival of many species.[2] Now, with climate change threatening species and their habitats, the ESA has a new danger to deal with. Is it up to the task?

One of the agencies responsible for implementing the ESA, the U.S. Fish and Wildlife Service (“FWS”), has recently considered impacts from climate change when deciding to list such animals as the polar bear and the North American wolverine.[3] However, when making these listing decisions, the FWS failed to extend the “take” provisions of the ESA to consider greenhouse gas emissions, stunting the effects of these listing decisions. To truly protect animals facing loss of critical habitat due to climate change, the FWS must consider how our changing reality affects each provision of the ESA and how each provision can be used, after listing, to further protect each species from the actual harm caused by climate change. Without taking this additional step, the ESA cannot successfully be used as a tool for climate change mitigation. Nevertheless, the ESA will be a necessary component of any plan for assisted species adaptation to climate change. Part I of this Paper will examine the ESA’s capacity for climate change mitigation through listing, takings, and consultation. Part II will look at the tools in the ESA best used for climate change adaptation, such as critical habitat designation, translocation, and Habitat Conservation Plans.

1. The Difficulty of Mitigating Climate Change Through the ESA

While there are some interesting legal arguments that would allow regulations of GHGs through the ESA, they are ultimately unsatisfying. The listing (Section 4), take (Section 9), and consultation (Section 7) provisions are the most likely avenues for climate change mitigation under the ESA, but each present distinct drawbacks. First, without using the full force of the law to prevent GHG emissions, listing alone cannot protect climate-threatened species. Second, the attenuated chain of causation from climate change to species-level harm limits the usefulness of the take provision. Finally, the consultation provision’s limited scope minimizes any benefit it may have. Ultimately, the FWS is not the best agency to regulate GHG emissions, nor is the ESA the best statute for the job, even where it seems to be possible.

A. Listing Petitions, Even When Successful, Can Be Undermined

Section 4(a)(1) of the ESA outlines the framework for making listing decisions for threatened or endangered species. It provides that “The Secretary shall . . . determine whether any species is an endangered species or a threatened species because of . . . (A) the present or threatened destruction, modification, or curtailment of its habitat or range . . . or (E) other natural or manmade factors affecting its continued existence.”[4] The last “catch-all” factor provides a clear route through which to list climate-threatened species. A “threatened species” is one “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range,”[5] and an endangered species is “in danger of extinction throughout all or a significant portion of its range.”[6] The FWS has proposed listing two species as threatened due to climate change: the polar bear and the wolverine.[7]

The polar bear depends on the presence of sea ice year-round for survival,[8] but there has been an “overall downward trend in the Arctic sea ice extent” due to climate change.[9] In 2005, environmental groups petitioned the FWS to list the polar bear as threatened under the ESA due to climate change’s impact on sea ice, and then filed a lawsuit when FWS did not respond to their petition.[10] After some back-and-forth, a federal judge ordered the FWS to make a final listing decision, and the FWS ultimately listed the polar bear as threatened.[11] The FWS used the “best scientific and commercial information available” to determine that loss of sea ice was a continued threat to the species that would likely cause it to become endangered in the near future, justifying the listing as a threatened species.[12]

The North American wolverine is threatened by climate change because it “rel[ies] on habitat with ‘deep persistent spring snow,’ with this need limiting their habitat to the coldest available landscapes.”[13] In 2013, the FWS proposed listing the wolverine population found in the contiguous United States as a threatened species under the ESA,[14] which would have made the wolverine the first—and only—species listed by FWS as threatened solely because of habitat loss due to climate change.[15] However, in 2014, the FWS withdraw the proposed listing, claiming that the science was inconclusive.[16] In April, a U.S. District Judge in Montana ruled that FWS violated the ESA when it withdrew the proposed rule.[17] FWS reopened the comment period on the proposed wolverine listing, closing the comment period on November 17, 2016.[18]

Even with threatened status, however, the polar bear is inadequately protected. FWS limited the effectiveness of the polar bear listing by issuing a 4(d) rule exemption. Section 4(d) provides: “Whenever any species is listed as a threatened species . . . the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species.”[19] Section 4(d) is used to issue takings-like regulations for threatened species because Section 9 of the ESA (the takings section) only applies to endangered species.[20] In the 4(d) rule for the polar bear, the FWS merely adopted the definitions of take under the Marine Mammal Protection Act (“MMPA”) and the Convention on International Trade in Endangered Species (“CITES”), both of which already covered the polar bear.[21] Further, the FWS “expressly declined to reach activities outside of the species’ current range.”[22] Additionally, the FWS refused to extend the Section 9 take prohibitions or the Section 7 consultation provisions to include GHG emissions contributing to climate change.[23] Then-Secretary of the Interior Kempthorne “essentially stated that while the ESA may require him to list the polar bear as a threatened species, that listing should not be used as a backdoor method or justification for regulating greenhouse gas emissions or addressing climate change more generally.”[24] As long as the FWS is refusing to regulate the causes or contributions to climate change, listing alone does little to protect climate-threatened species. However, listing is necessary in order to assist the species in its future adaption needs.

B. GHG Emissions as a “Take” and the Problem of Causation

Section 9 of the ESA prohibits any “person” from, among other things, taking an endangered species.[25] In the context of the ESA, “‘take’ means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”[26] Since the Supreme Court decision in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon (“Sweet Home”),[27] “harm,” as used in the definition for “take,” includes “any significant habitat modification that leads to the death or injury of the species.”[28] In her concurrence in Sweet Home, Justice O’Connor emphasized the importance of taking into account any negative impact the habitat modification would have on the “breeding, feeding, and sheltering” of the species because any harm to these basic survival activities would ultimately lead to death or injury of the species.[29]

Despite there being some flexibility with the definition of “actual harm,”[30] arguing that the emission of GHGs constitutes a taking is problematic because there is no easily identifiable “critical link” between the emission and the actual harm. If the FWS were to go after private GHG emitters, they would have great difficulty linking the actions of that particular emitter to the specific harm to the species they were representing.[31] Harm from climate change presents the problem of multiple actors and de minimis contributions.[32] It is practically impossible to trace emissions from one polluter to harm to a specific species. This problem could possibly be addressed by either: (1) targeting enforcement suits at major emitters, or (2) targeting enforcement suits at proposed or existing fossil fuel infrastructure located within critical habitat designations. Because GHG emissions are the primary driver of climate change and sea-level rise, GHG emitters are the beginning of a causal chain that leads to the “take” of an endangered species.

So far, the FWS has denied the opportunity to find that climate change constitutes a “harm” under the ESA. This decision is likely a result of the lack of desire to take on regulating greenhouse gases, and the difficulty in providing a causal link between a specific GHG emitter and the particular harm to the species.[33] However, “considering that the policy goal of the ESA is to conserve species, any injury likely to substantially impact a species’ long-term survival should be considered a proximate cause of harm.”[34] In the context of climate change, it might be easier to prove causation if we were to focus on the population level effect of a habitat modification in order to better assess its impact on the species as a whole.[35]

One model of a possibly useful takings suit is that of Defenders of Wildlife v. Administrator.[36] In this case, Defenders of Wildlife sued the Environmental Protection Agency (“EPA”), alleging that they were “taking protected eagles by continuing to allow certain pesticide uses of strychnine.”[37] The Eighth Circuit agreed.[38] While Massachusetts v. EPA[39] has already directed EPA to regulate greenhouse gas emissions, this method could be used to further drive action on climate change; according to this theory, inaction by FWS in the face of a changing climate may be unlawful. Such a lawsuit might be subject to dismissal under the non-justiciable political question doctrine, but, if successful, could force EPA to hasten climate change regulation. Overall, Section 9 is not the best use of the ESA to deal with climate change, but the concept of “harm” as “adverse modification of habitat” is also useful under Section 7.

C. Consultation

Section 7 of the ESA requires federal agencies to consult with the Secretary of the Interior before taking any action that might harm a threatened or endangered species:

Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency ( . . . “agency action”) is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary . . . to be critical, unless such agency has been granted an exemption for such action . . . .[40]

To begin the consultation process, an agency requests information from the FWS “as to whether any listed species, or candidate species, exists in the area of the proposed agency action.”[41] If the consulting agency decides that there are listed or candidate species in the action area, they must issue a biological opinion addressing two questions: “(1) will the agency action jeopardize the continued existence of an endangered species or threatened species? and (2) will the agency action result in the destruction or adverse modification of habitat of endangered or threatened species?”[42]

The FWS defines “jeopardize” as “to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species.”[43] “Adverse modification” is defined as “a direct or indirect alteration that appreciably diminishes the value of critical habitat for the conservation of a listed species.”[44] Importantly, “[w]hat matters for [S]ection 7 purposes is the impact of the agency action on the species as a whole—not the harm to individual organisms.”[45]

In determining whether an agency action “jeopardizes the continued existence” of a species, it may be appropriate to ask not whether an agency action causes climate change that then causes harm to the species, but rather whether the agency action contributes to climate change, and thus also to the environmental baseline. The environmental baseline encompasses:

the past and present impacts of all Federal, State, or private actions and other human activities in the action area, the anticipated impacts of all proposed Federal projects in the action area that have already undergone formal or early [S]ection 7 consultation, and the impact of State or private actions which are contemporaneous with the consultation in process.[46]

The jeopardy analysis requires agencies to look at the incremental impact of the agency action when added to the environmental baseline.[47] The incremental approach of the environmental baseline could work to shield agencies from liability because climate change is already happening and it would be hard to prove that the agency action somehow pushes the species over the edge.[48] However, the agency, or a court, could take the view that any contribution to the furtherance of climate change adds to the environmental baseline in a way that jeopardizes the continued existence of the species threatened by climate change.

When evaluating the impact of their action, the agency must also take into account the “action area” of the project which is defined as “all areas to be affected directly or indirectly by the Federal action and not merely the immediate area involved in the action.”[49] Causation again becomes an issue when trying to fit climate change into the frame of an “action area:” what are the effects of the GHG emissions from an agency action, and what is their geographic scope?[50]

The best route under the ESA for climate change mitigation is under Section 7 because of its species-wide concerns, expanded range of impact, and the requirement to take into account the other sources of harm facing the species. Furthermore, “courts normally remedy [S]ection 7 violations with injunctive relief,”[51] which means that there is greater possibility of preventing new fossil fuel extraction projects altogether, as long as they are tied to a federal agency. While it still might be a bit of a stretch to try use Section 7 of the ESA to prevent specific federal projects with high levels of GHG emissions, it still presents a more promising route than Section 9. However, altogether, climate mitigation is unlikely to be a successful use of the ESA.

2. Possible Adaptation Structures Under the ESA

Although the ESA can only indirectly mitigate climate change, it could effectively promote climate change adaptation.[52] FWS lacks the expertise to handle full-scale GHG regulation; this duty belongs to EPA. While this Article advocates creativity in targeting specific projects in a kind of small-scale mitigation, the best use for the ESA is likely in the form of adaptive management. This Part will look at critical habitat designation and how it can become forward-looking and adaptive, as well as how private parties can adjust Habitat Conservation Plans (“HCPs”) to account for climate change.

A. Critical Habitat Designations

Critical habitat designation is the most important tool the ESA has to offer endangered and threatened species in the era of climate change. The ESA defines critical habitat as:

(i) the specific areas within the geographical area occupied by the species, . . . on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed . . . upon a determination . . . that such areas are essential for the conservation of the species.[53]

Critical habitat designations are designed to protect habitat “necessary for a [threatened or endangered] species’ survival or recovery.”[54] The designation functions by providing “notice to government agencies and private actors of the existence and importance of the habitat,” which could serve to divert development projects.[55] However, while critical habitat designation is an important protective tool, its use is often delayed, and many listed species have not received a designation.[56]

Importantly in the era of climate change, the definition of critical habitat also allows the FWS to designate “target land areas for future migrations.”[57] Also, helpfully, the FWS can revise the designation as needed.[58] The designation of not-yet-occupied habitat is useful in the context of consultation because an agency action could be found to adversely modify the future value of the habitat to the species.[59] Designating unoccupied habitat for future use is a vital step to preserving all possible futures for climate-threatened species, especially as original habitats become inhospitable to the species that call them home.

Critical habitat designations have not been without controversy. In the past, “[c]ourts have required that each of the elements contained in this statutory definition of critical habitat must be satisfied for a critical habitat designation to be valid.”[60] FWS proposed a rule in 2014 that, despite Congress’s preference toward occupied habitat, treats occupied and unoccupied habitat almost interchangeably, explicitly stating that “the Act does not require the Services to first prove that the occupied areas are insufficient before considering unoccupied areas.”[61] The proposed rule even authorizes the designation of areas that will likely become necessary to support the species.[62] It is this type of ambitious rulemaking, coupled with court rulings that make critical habitat designation more efficient,[63] that will prepare the ESA to tackle climate change.

As we designate occupied and unoccupied critical habitat for climate-threatened species, it is important to make sure that the animals are able to access the new habitat when they need it. Wherever possible, future target areas must be made accessible through the use of wildlife corridors, linkages, or other forms of connectivity.[64] However, creating these linkages might not always be possible and even where they are, animals might not migrate on their own. So, what then? Assisted migration or species translocation might be the most viable step. While translocation should be a last resort, there might come a time when it is the only way to save a species.

B. Section 10(j)

Section 10(j) presents another possibility for developing climate change adaptation strategies under the ESA. While the original intent of the ESA is to preserve species in their original habitat, and while translocation might, on first glance, look like a “take,”[65] there may soon be a time when there is no other choice. Under Section 10(j) of the ESA, “[t]he Secretary may authorize the release . . . of any population . . . of an endangered species or a threatened species outside the current range of such species if the Secretary determines that such release will further the conservation of such species.”[66] This Section allows the Secretary to designate experimental populations to test how translocation might affect a species or ecosystem before authorizing the practice for a wide swath of species.[67] FWS “[r]egulations interpreting this provision allow for the use of habitat outside a species’ historic range when the ‘primary habitat of the species has been unsuitably and irreversibly altered or destroyed.’”[68] But the idea of translocation is controversial because of its antithesis to our general idea of preservation and its ability to disturb native species and ecosystems, either by removing or introducing a species.[69]

Before assisted translocation becomes our only option, however, it is necessary to create adaptive management plans for species and their critical habitat. With adaptive management, “results are monitored and varying strategies are compared for relative effectiveness. Initial plans ideally should provide: 1. clear objectives by which experiments may be assessed, and 2. specific criteria or triggers for when strategies must be adjusted to reflect new information or changed circumstances.”[70] This type of plan allows managers some flexibility in their decision-making, but also provides detailed plans for certain situations that need the most careful attention. Adaptive management is “the gold standard approach for handling climate adaptation.”[71]

C. Habitat Conservation Plans

Under Section 10(a) of the ESA, private parties applying for incidental take permits “must submit a habitat conservation plan (“HCP”) for that species, containing mitigation planning that is directly tied to the species take that will occur.”[72] Section 10(a) is the “only provision in the ESA to address the protection of private land habitat.”[73] The private landowner receives an incidental take permit in exchange for devising a plan that seeks to “minimize and mitigate” the impact of the development on their land.[74] The individual nature of this program, the relative disinterest of private landowners in the preservation of species, lack of adequate funding, and scant enforceability have stunted the potential of the provision.[75]

While HCPs haven’t always lived up to their potential,[76] it would be relatively simple to incorporate climate change planning into HCPs. First, the applicant must identify which species are covered by the incidental take permit that is the impetus for the HCP, then determine which of those species are affected by climate change.[77] Because HCPs often include “unlisted species that are likely to become listed over the permit term,”[78] HCPs are a good way to account for species that might be affected by climate change in a certain area without or before going through the listing process.

HCPs can also be an effective tool through which to practice adaptively managing current habitat and successfully designing future habitat by focusing on the underlying features of the current habitat that make it amenable to a certain species.[79] Practicing adaptive management would give the land managers enough flexibility to respond to new information. Habitat suitability modeling and monitoring, along with expert opinion, “can guide the identification and acquisition of future habitat.”[80] Because HCPs are long-term plans, it is appropriate for them to focus on creating wildlife corridors and planning for the enduring survival of the species.[81] Part of adaptive management in the context of climate change involves “anticipating the effects of climate change and addressing them proactively in the planning process.”[82] Part of anticipating the effects of climate change includes planning for disturbance events and managing for resilience to any natural disaster that might occur.[83] Overall, focusing on the future and being flexible and creative when making decisions about the composition of future habitat and assisted migration are key components to a successful HCP.[84]


The ESA is the most important tool we have for protecting species in the era of climate change. While the Act theoretically has the capacity to prevent fossil fuel activity through the Section 7 consultation provision, it is unlikely to be useful in the realm of climate change mitigation. FWS is not the appropriate agency through which to regulate GHG emissions. On the other hand, as an Act designed to protect species in an inevitably changing world, adaptation has to be a top priority for the ESA. FWS can handle this task as long as it prioritizes flexibility by responding to research outcomes along the way. But first, FWS must prioritize actually designating critical habitat for the many listed species for which it has failed to do so. Designated habitat needs to be adaptively managed and future-looking so that the species can best acclimate, with or without help, as the climate changes. For private companies and private landowners, HCPs offer a clear path for long-term adaptive planning that can make a real difference in the survival of climate-threatened species. Protecting animals without protecting their habitats is a lost cause. The ESA may have been written in 1973, but it has what it takes to protect species from the ecological problems of the twenty-first century. This requires only that we read the ESA, and act pursuant to it, in light of our changing world.

[1] 16 U.S.C. §§ 1531–1544 (2012).

[2] See Ari N. Sommer, Note, Taking the Pit Bull Off the Leash: Siccing the Endangered Species Act on Climate Change, 36 B.C. Envtl. Aff. L. Rev. 273, 284 (2009) (“The ESA has been described as one of the most effective environmental statutes ever passed by Congress, largely because of its absolutist stance.”).

[3] See Michael C. Blumm & Kya B. Marienfeld, Endangered Species Act Listings and Climate Change: Avoiding the Elephant in the Room, 20 Animal L. 277, 283–99 (2014).

[4] 16 U.S.C. § 1533(a)(1).

[5] § 1532(20).

[6] § 1532(6).

[7] See Threatened Status for the Distinct Population Segment of the North American Wolverine Occurring in the Contiguous United States, 79 Fed. Reg. 47,522 (Aug. 13, 2014); Determination of Threatened Status for the Polar Bear (Ursus maritimus) Throughout Its Range, 73 Fed. Reg. 28,212 (May 15, 2008); see also Proposed Rule for the North American Wolverine, 81 Fed. Reg. 71,670 (Oct. 18, 2016).

[8] See Sarah Jane Morath, The Endangered Species Act: A New Avenue for Climate Change Litigation?, 29 Pub. Land & Resources L. Rev. 23, 30 (2008).

[9] See Blumm & Marienfeld, supra note 3, at 283.

[10] Id.

[11] Id. at 284.

[12] Id. at 284–85.

[13] Id. at 295.

[14] Id. at 295–96.

[15] Id. at 297.

[16] See J. Weston Phippen, Great News for Wolverines, and a Lashing for U.S. Fish and Wildlife, The Atlantic (Apr. 8, 2016), https://perma.cc/W3S9-VZ36.

[17] Claire Horan, Comment, Defenders of Wildlife v. Jewell (D. Mont. 2016), 41 Harv. Envtl. L. Rev. (forthcoming 2017).

[18] Press Release, U.S. Fish & Wildlife Serv., Court Ruling Reopens Comment Period on North American Wolverine Proposed Listing Rule (Oct. 17, 2016), https://perma.cc/3V33-8YEK.

[19] 16 U.S.C. § 1533 (2012).

[20] See also Maggie Kuhn, Climate Change and the Polar Bear: Is the Endangered Species Act up to the Task?, 27 Alaska L. Rev. 125, 141 (2010).

[21] Id.

[22] Blumm & Marienfeld, supra note 3, at 289.

[23] Id.

[24] Ethan Mooar, Note, Can Climate Change Constitute a Taking? The Endangered Species Act and Greenhouse Gas Regulation, 21 Colo. J. Int’l Envtl. L & Pol’y 399, 400 (2010).

[25] 16 U.S.C. § 1538 (2012); see also Mooar, supra note 24, at 401 (citing § 1532(13) (“‘[P]erson’ is defined broadly to include any real person, any corporation, any government or government agent at any level, and ‘any other entity subject to the jurisdiction of the United States.’”).

[26] 16 U.S.C. § 1532(19).

[27] 515 U.S. 687 (1995).

[28] See Kuhn, supra note 20, at 143 (citing 50 C.F.R. § 17.3 (2009)).

[29] Sweet Home, 515 U.S. at 710 (O’Connor, J., concurring).

[30] See Mooar, supra note 24, at 409–10 (citing Palila v. Haw. Dep’t of Land & Nat. Res., 649 F. Supp. 1070, 1077 (D. Haw. 1986) (finding that the “critical link’ could extend forward in time to the effects on future populations, or, framed differently, to the effect on the reproductive success of the present population)); see also Forest Conservation Council v. Rosboro Lumber Co., 50 F.3d 781, 783 (9th Cir. 1995) (holding that not contemplating future harm under the ESA is “antithetical to [its] basic purpose”).

[31] See Matthew Gerhart, Comment, Climate Change and the Endangered Species Act: The Difficulty of Proving Causation, 36 Ecology L.Q. 167, 189 (2009).

[32] See id. at 187.

[33] Morath, supra note 8, at 36 (citing Morrill v. Lujan, 802 F. Supp. 424, 432 (S.D. Ala. 1992) (holding that “proof of a taking requires the plaintiff to establish a causal link between the habitat modification of a proposed project and the potential harm alleged”)).

[34] Mooar, supra note 24, at 403–04 (citing Federico Cheever & Michael Balster, The Take Prohibition in Section 9 of the Endangered Species Act: Contradictions, Ugly Ducklings, and Conservation of Species, 34 Envtl. L. 363, 381–82 (2004)).

[35] See id. at 406; see also id. at 413 (citing Marbeled Murrelet v. Pac. Lumber Co., 880 F. Supp. 1343 (N.D. Cal. 1995) (“[T]he survivability of the local population is ‘important to the survivability of the entire California marbled murrelet population.’”).

[36] 882 F.2d 1294 (8th Cir. 1989).

[37] Mooar, supra note 24, at 416.

[38] Defs. of Wildlife, 882 F.2d at 1301.

[39] 549 U.S. 497 (2007).

[40] 16 U.S.C. § 1536(a)(2) (2012).

[41] Gerhart, supra note 31, at 171.

[42] Id. at 171–72.

[43] 50 C.F.R. § 402.02 (2008).

[44] Id.

[45] Gerhart, supra note 31, at 172

[46] 50 C.F.R. § 402.02 (2008).

[47] Gerhart, supra note 31, at 179.

[48] See id. at 181.

[49] 50 C.F.R. § 402.02 (2008).

[50] Gerhart, supra note 31, at 175.

[51] Id. at 176.

[52] See Kalyani Robbins, The Biodiversity Paradigm Shift: Adapting the Endangered Species Act to Climate Change, 27 Fordham Envtl. L. Rev. 57, 86–91 (2015) (describing why the ESA is not suitable for climate change mitigation).

[53] 16 U.S.C. § 1532(5)(A) (2012).

[54] Dave Owen, Critical Habitat and the Challenge of Regulating Small Harms, 64 Fla. L. Rev. 141, 150 (2012).

[55] Dashiell Farewell, Revitalizing Critical Habitat: The Ninth Circuit’s Pro-Efficiency Approach, 46 Envtl. L. 653, 663 (2016).

[56] Id. at 656.

[57] Robbins, supra note 52, at 91–92.

[58] 16 U.S.C. § 1533(a)(3)(A).

[59] See Robbins, supra note 52, at 92.

[60] Steven Quarles, Brooke Wahlberg, & Sarah Wells, Critical Habitat in Critical Condition: Can Controversial New Rules Revive It?, 30 Nat. Resources & Env’t 8, 9 (2015) (citing Cape Hatteras Access Preservation All. v. U.S. Dep’t of the Interior, 344 F. Supp. 2 108 (D.D.C. 2004); Home Builders Ass’n of N. Cal. v. U.S. Fish & Wildlife Serv., 268 F. Supp. 2d 1197 (E.D. Cal. 2003)).

[61] Id. at 10.

[62] Id.

[63] See generally Farewell, supra note 55.

[64] See Robbins, supra note 52, at 78.

[65] Id. at 93.

[66] 16 U.S.C. § 1539(j)(2)(A) (2012).

[67] See Jaclyn Lopez, Biodiversity on the Brink: The Role of “Assisted Migration” in Managing Endangered Species Threatened with Rising Seas, 39 Harv. Envtl. L. Rev. 157, 176 (2015).

[68] Robbins, supra note 52, at 93–94 (citing 50 C.F.R. § 17.81(a) (2016)).

[69] See Ben A. Minteer & James P. Collins, Move It or Lose It? The Ecological Ethics of Relocating Species Under Climate Change, 20 Ecological Applications 1801, 1802 (2010).

[70] Robbins, supra note 52, at 76.

[71] Id. at 77.

[72] Id. at 95.

[73] Karin P. Sheldon, Habitat Conservation Planning: Addressing the Achilles Heel of the Endangered Species Act, 6 N.Y.U. Envtl. L.J. 279, 284 (1998).

[74] Id. at 296.

[75] See id. at 300–07.

[76] See generally id. at 299–300.

[77] Paola Bernazzani, Bethany A. Bradley, & Jeffrey J. Opperman, Integrating Climate Change into Habitat Conservation Plans Under the U.S. Endangered Species Act, 49 Envtl. Mgmt. 1103, 1105 (2012).

[78] Id.

[79] Id. at 1107.

[80] Id. at 1108.

[81] Id.

[82] Id. at 1109.

[83] Id.

[84] See id. at 1111.

Enough Horsing Around

Enough Horsing Around

By Joseph Godio Joseph Godio is a 3L at Georgetown University Law Center and a senior editor of the Georgetown Environmental Law Review.   This post is part of the Environmental Law Review Syndicate (ELRS).  Read the original at Ecology Law Quarterly’s website. Introduction New York […]

Climate Change Regulation Through Litigation: New York’s Investigation of ExxonMobil under the Martin Act

Climate Change Regulation Through Litigation: New York’s Investigation of ExxonMobil under the Martin Act

Chris Erickson   This post is part of the Environmental Law Review Syndicate. Read the original here and leave a comment. In November 2015, New York Attorney General Eric Schneiderman began an investigation into whether ExxonMobil made public statements about climate change that conflicted with […]

The Legislative History of the National Park Service’s Conservation and Nonimpairment Mandate

The Legislative History of the National Park Service’s Conservation and Nonimpairment Mandate

By Caitlin Brown

Caitlin Brown is a 3L at Berkeley Law and Co-Editor in Chief of Ecology Law Quarterly.


This post is part of the Environmental Law Review Syndicate (ELRS).  Read the original at Ecology Law Quarterly’s website.


The National Park Service manages over 84 million acres of land divided between 413 different sites, and in 2015 alone, served 307.2 million visitors.[1] Their management goals are based on the 1916 National Park Service Organic Act (“the Act”). Section 1 of the Act defines the Park Service’s purpose as “to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.”[2] How are conservation and impairment from section 1 of the Act defined in the legislative history? How did these concepts originally enter the legislation, and what did Congress think the implications of the standards were? Professor Eric Biber of Berkeley Law posed these questions to me to assist with his research for an article he wrote with Elisabeth Long Esposito, The National Park Service Organic Act and Climate Change.[3] Given that 2016 is the centennial of the National Park Service’s founding by the Organic Act, a deep dive into the legislative history of the National Park Service seemed timely.

In the legislative history, Congress never explicitly defined conservation or impairment. However, the concerns of the Congressmen and the experts who influenced the legislation allow inferences about what these provisions mean. Generally, one can interpret these terms by reference to the differences between National Parks and National Forests. In comparison to National Forests, managed for consumptive use of their resources, National Parks were to be preserved for their scenic value and protected for the benefit of future generations.

As the Park Service manages millions of acres of land vulnerable to the impacts of climate change, these questions are important.[4] The Organic Act and subsequent amendments could offer leeway to Park Service managers as they try to respond to those impacts. Because neither the Organic Act nor its amendments set out specific management directives, I searched the legislative history for any evidence from the debates, conferences, and hearings that was useful in interpreting the extremely broad language of section 1. Ultimately, nothing in these documents prohibits active management by the Park Service to conserve and protect against the effects of climate change.

 I. Documents Researched

My research encompassed the legislative history of the National Park Service including hearings beginning in 1912 on what would become the 1916 Organic Act, the 1970 General Authorities Act, and the Redwood Amendments in 1978.  I read the related hearings, reports, and floor debates to better understand the usage and meaning of conservation and impairment as terms in the Act.

II. Discussion and Analysis

1. 1912-1914: Laying the Groundwork for the Organic Act

The Secretary of the Interior and the American Civic Association[5] first suggested the mandate to prevent detrimental uses of the parks[6] in a proposed bill in 1912.[7] The hope was that this section would define “clearly and definitely the purposes for which the public parks [should] be maintained and . . . to prohibit any uses which would be detrimental to these purposes.”[8] The language of the proposed bill read:

That the parks, monuments, and reservations herein provided for shall not at any time be used in any way contrary to the purpose thereof as agencies promoting public recreation and public health through the use and enjoyment by the people of such parks, monuments, and reservations, and of the natural scenery and objects of interest therein, or in any way detrimental to the value thereof for such purpose.[9]

This ‘purpose’ language, however, did not quite accomplish Congress’s goal of clarity because it did not specify any detrimental uses or create a hierarchy when any of the enumerated purposes conflicted.

However, the legislative history in 1912 explained how the parks, monuments and reservations differed from other public lands, which in turn provides a glimpse into the purpose of the parks.  For example, the Secretary of Agriculture, James Wilson, emphasized the difference between national forests and national parks, namely that national forests “should be managed with a view to their fullest possible development and use, in order that the industries dependent upon them may secure necessary supplies.”[10] Conversely, “the national parks should be managed with a view to preserving their scenic interest and furnishing a recreation ground for the people, only allowing such use of their resources as may be necessary to improve and protect them.”[11] He recommended against including “large bodies of heavy timber” because “there would ultimately be a pressure on the park bureau to cut it on a commercial basis.”[12] However, if parks had to be in “timber country,” they should still be managed with “reference to their scenic beauty.”[13] This recommendation makes it clear that the scenic beauty of parks was to be put ahead of commercial use.  It was for this reason that Secretary Wilson also recommended amending section 4 of the bill which, at the time, allowed for the Secretary of Interior to:

[S]ell or dispose of dead or insect-infested timber and of such matured timber as in his judgment may be disposed of without detriment to the scenic or other purposes for which such parks, monuments, or reservations are established, grant leases and permits for the use of the lands the development of the resources, or privileges for the accommodation of visitors in the various parks, monuments, and reservations herein provided for, for periods not exceeding twenty years.[14]

His amendment struck the language above and only allowed the Secretary of Interior to:

[G]rant leases and permits for such use of the land and such development of its resources as may be necessary for the improvement and protection of such parks, monuments, and reservations, or for privileges for the accommodation of visitors to the various parks, monuments, and reservations herein provided for, for periods not exceeding twenty years.[15]

He narrowed the Secretary of Interior’s authority because he believed the original language authorized “a fuller use than should be allowed.”[16] Under the original bill the Secretary could have authorized harvest of mature timber and only had to explain that in his judgment it was not detrimental to the park. Wilson’s amendment flipped the requirement to only allow timber harvest (or other uses of resources) when it was necessary to improve and protect the parks.

Similar inferences can be drawn from the testimony of the Chief Forester of the Department of Agriculture in 1914 when discussing the Grand Canyon. At that time the Grand Canyon was a National Forest. However, it was recognized that it should be a National Park instead. The Chief Forester noted that the Department of Agriculture was working “with the Interior Department in getting methods and outlining boundary lines,” preparing for it to become a National Park.[17] The Forest Service was already “administering it with reference to its park features” so that when it became a park it would “go right along without any change of policy” and there would not be “any shacks along the rim.”[18] This discussion suggests that the conservation and nonimpairment purposes meant allowing parks to retain their wild characteristics—their “park features”—and remain free of scenery marring structures. In addition to these references in the 1912 and 1914 hearings, the general tone indicates it was obvious that the parks were special and different and needed particular management.[19] Neither these bills nor their legislative history defined the difference between these management practices in any detail.

The driving force, instead, behind these bills leading up to the passage of the Organic Act was not to clearly define conservation and nonimpairment to guide future Park Service leaders, but rather to “to bring the administration of the various parks and monuments under one head, thus substituting uniformity of law and administration for the present disorganized condition.”[20] It is therefore unsurprising that much of this early legislative history concerns the administrative organization and funding of the park system, rather than the meaning of particular terms.[21]

2. 1916: The Organic Act

In 1916, unified administration of the Park Service and the challenge of making that happen were still the driving force behind the bill.[22]  However, this was also when Congress incorporated language regarding the fundamental purpose of the Park Service:

[It s]hall be determined the fundamental object of the aforesaid parks, monuments, and reservations is to conserve the scenery and the natural and historical objects therein and to provide for the enjoyment of said scenery and objects by the public in any manner and by any means that will leave them unimpaired for the enjoyment of future generations.[23]

This language, framed by Frederick Law Olmstead, was included to “explain what the parks were for.”[24] In testimony, J. Horace McFarland, President of the American Civic Association, discussed what this language meant to him. However, he never specifically defined conservation or impairment; instead his statements allow inferences to be drawn about what these terms meant to him.  He considered establishing the Park Service to be of utmost importance because the purpose of the parks was “unrelated to any other purpose carried out by any other bureau or department in the whole Government scope or service.”[25] The parks were the “Nation’s pleasure grounds and the Nation’s restoring places” while the forests were “the nation’s wood lots.”[26] The national parks needed to be “dignified by a separate handling” in order to be “freer from the assaults of selfishness.”[27] And the “two ideas of the parks” (conservation and enjoyment by the public) should never be weakened, only strengthened.[28] Once again, in distinguishing between the National Parks and National Forests, it is clear that parks were different and special.  It was of the utmost importance to “preserve for [the people] wide spaces of fine scenery for their delight” and “perpetual enjoyment.”[29]

Glimpses into what the purpose of the Park Service meant to Congress can be found in the House Public Lands Committee’s discussion of conservation of wildlife and the protections of national monuments and reservations.  Because the parks were free of “public lumbering” and “protected by law from hunting of any kind,” they alone “had the seclusion and other conditions essential for the protection and propagation of wild animal life” and would become “great public nature schools.”[30] Further, the national monuments and reserves were to be “administered in connection with the national parks, which they strongly resemble.”[31] The “protection and preservation” was “of great interest and importance, because a great variety of objects, historic, prehistoric, and scientific in character, are thus preserved for public use intact, instead of being exploited by private individuals for gain and their treasures scattered.”[32] These discussions recognize conservation and nonimpairment of resources for future generations as the purpose of the Act, despite the lack of express definitions.

In later versions of the bill, Congress slightly changed the fundamental purpose language to “[to] conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means, as will leave them unimpaired for the enjoyment of future generations.”[33] In this committee report, the purposes of the park service are further defined in relation to the management of national forests: “It was the unanimous opinion of the committee that there should not be any conflict of jurisdiction as between” the two departments which could hinder the management of the parks “set apart for the public enjoyment and entertainment” as opposed to the forests which were “devoted strictly to utilitarian purposes.”[34] This “segregation of national park[s]” required “the preservation of nature as it exists.”[35] As such, the conservation and nonimpairment standards were what set the parks apart from the national forests. The discussion of this difference in the legislative history was as close as Congress got to defining the terms.

3. 1969-1970: The General Authorities Act

The General Authorities Act of 1970 was not a “glamorous bill” and was intended to clarify that the National Park System’s fundamental purpose extended to all of the different areas managed by the Park Service and not just the parks and monuments.[36] Between 1916 and 1970 the concept of the national park system had “broadened to include battlegrounds and historic places, as well as areas primarily significant for their outdoor recreation potential.”[37] The aim of the bill was to make sure that all park system units were “appropriately administered so that the long-term interests of the public [could] be served.”[38] Congress reiterated that the “objective of the national park system [was] to conserve and protect for the edification and enjoyment of the American public—now and in the future—areas and places of national significance.”[39] Again, this bill offered no definition of conservation.

4. 1977-1978: The Redwood Amendment

The Redwood Amendment reaffirmed Congress’s support that decisions by the Park Service would be based on the criteria provided by 16 U.S.C. § 1—the conservation and nonimpairment language—and that this language would also guide courts when resolving conflicts between “competing private and public values and interests in the areas surrounding Redwood National Park and other areas of the National Park System.”[40] Surprisingly, this transboundary reach was not disputed by the minority views published in the report.[41]

The amendment added the following language to the end of the General Authorities Act:

Congress further reaffirms, declares and directs that the promotion and regulation of the various areas of the National Park System . . . shall be consistent with and founded in the purpose established by the first section of the Act of August 25, 1916, to the common benefit of all the people of the United States. The authorization of activities shall be construed and the protection, management and administration of these areas shall be conducted in light of the high public value and integrity of the National Park System and shall not be exercised in derogation of the values and purposes for which these various areas have been established, except as may have been or shall be directly and specifically provided by Congress.[42]

It was necessary to reaffirm the purpose of the National Park System because the committee was “concerned that litigation with regard to Redwood National Park and other areas of the system may have blurred the responsibilities articulated by the 1916 Act creating the National Park Service.”[43] “Accordingly,” the committee reported, the “Secretary is to afford the highest standard of protection and care to the natural resources within . . . [the] National Park System. No decision shall compromise these resource values except as Congress may have specifically provided.”[44] While not specifically identifying this as the conservation and nonimpairment mandate, it can be inferred as such given that conservation and nonimpairment were the purposes of the National Park Service defined in section 1 of the Act.

Congress meant for the Redwood Amendment to establish “once and for all that the administration of our great park resources is a preeminent responsibility of the United States.”[45] Further, it “elevates and strengthens the management standards establishing the National Park Service in 1916 to requirements of law.”[46] And, importantly for Park Services managers, the Redwood Amendment “insures that management decisions affecting our park system must square with this standard and that competing interests not consistent with the first section of the act
of August 25, 1916, may only be approved if specifically authorized, either previously or through subsequent legislation, by Congress.”[47] In sum, the Redwood Amendment clarified that Congress intended for Park Service managers to have authority to manage the lands for conservation and nonimpairment in order to comply with the legally-mandated management standards.


The Organic Act and subsequent legislation granted the Secretary of Interior authority to manage the National Parks System consistently with the fundamental purpose language. Neither the statute nor the legislative history defines the terms “conservation” or “impairment” clearly.  The Redwood Amendment’s legislative history comes closest to explaining the intent behind these mandates, offering guidance for both Park Service managers and courts when considering disputes between public and private interests and always putting conservation before a detrimental use unless specifically directed by Congress.

When considering the impacts of climate change on the National Parks, the legislative history behind the conservation and nonimpairment mandate supports active management to conserve and protect all units within the Park Service. At the time the Act was passed, the legislators could not have contemplated the potential impacts of climate change. Instead, they planned protection for the parks against detrimental human uses. But it is from the legislators’ protective language that Park Service managers can justify their authority to protect against the detrimental impacts of climate change.

[1] Nat’l Park Serv., National Park Service Overview (2016), https://www.nps.gov/aboutus/news/upload/NPS-Overview-09-01-2016.pdf.

[2] 16 U.S.C. § 1 (1916) (codified at 54 U.S.C. § 100101(a)) (emphasis added).

[3] Eric Biber & Elisabeth Long Esposito, The National Park Service Organic Act and Climate Change, 56 Nat. Resources J. 193, 208 n.84 (2016). My research was used to support the point that “[i]f any lesson can be drawn from the Organic Act’s legislative history, it is probably that Congress intended the Park Service to have broad discretion to protect the scenic nature of its lands, and prioritize protection of scenery over other goals (such as commercial timber harvesting).” Id. at 208.

[4] This was the framing for Professor Biber and Ms. Esposito’s article. Biber & Esposito, supra note 3.

[5] The American Civic Association (“the ACA”), led by J. Horace McFarland, promoted “the beautification of cities and the preservation of national treasures, such as Niagara Falls and Yosemite’s Hetch Hetchy Valley.” Ellen Terrell, John Horace McFarland: Unsung Hero of the National Park Service, Library of Congress (August 25, 2016) https://blogs.loc.gov/inside_adams/2016/08/john-horace-mcfarland-unsung-hero-of-the-national-park-service/. McFarland and the ACA promoted creation of the National Parks Bureau—which would become the National Park Service—arguing that national management of the parks was critical to protect them. See John Horace McFarland, Address of Mr. J. Horace McFarland, 1911 Proceedings of the National Parks Session of the American Civic Association 10 https://babel.hathitrust.org/cgi/pt?id=loc.ark:/13960/t8tb1gb0j;view=1up;seq=5.

[6] When I use the word ‘parks’ in this memo, I am referring to all the different types of units the Park Service managed at the time of the legislation (in 1916, for example, National Parks, National Monuments and National Reservations).

[7] S. Rep. No. 62-676, at 1­–2 (1912). It was at this time, too, that the Secretary of Interior and the ACA recommended, “the name of the organization should be the National Park Service instead of Bureau of National Parks.” Id. at 1.

[8] Id. at 2.

[9] Id. at 1.

[10] Establishment of a National Park Service: Hearing on H.R. 22995 Before the H. Comm. on the Public Lands, 62nd Cong. 5 (1912).

[11] Id.

[12] Id.

[13] Id.

[14] Id. at 3 (emphasis added). Section 4 of this version of the bill would eventually become section 3.

[15] Id. at 5 (emphasis added).

[16] Id.

[17] National Park Service: Hearing on H.R. 104 Before the H. Comm. on the Public Lands, 63rd Cong. 77 (1914).

[18] Id.

[19] See S. Rep. No. 676 (1912); Establishment of a National Park Service: Hearing on H.R. 22995 Before the H. Comm. on the Public Lands, 62nd Cong. (1912); National Park Service: Hearing on H.R. 104 Before the H. Comm. on the Public Lands, 63rd Cong. (1914).

[20] S. Rep. No. 62-676, at 2 (1912).

[21] See, e.g., Bureau of National Parks: Hearing on S. 3463 Before the H. Comm. on Public Lands, 62nd Cong. (1912) (explaining why the Service needs an engineer and an assistant attorney; issues with salaries of these positions); Establishment of a National Park Service: Hearing on H.R. 22995 Before the H. Comm. on the Public Lands, 62nd Cong. (1912) (lack of coordination between the parks and consistent appropriations means that facilities and roads are not well developed); National Park Service: Hearing on H.R. 104 Before the H. Comm. on the Public Lands, 63rd Cong. (1914) (the parks all have similar needs but are not managed as one unit leading to very expensive local administration).

[22] Congressmen were particularly upset at the lack of visitors to the western parks after the 1915 Panama-Pacific International Exposition in San Francisco. Instead of returning by way of Yosemite and Glacier, “75 percent of them returned by the Canadian Pacific thanks to the very efficient advertising which Canada [had] done.”  National Park Service: Hearing on H.R. 434 and H.R. 8668 Before the H. Comm. on the Public Lands, 64th Cong. 35 (1916). They took it as a personal affront and attributed it to a lack of a National Park Service, which Canada had, which would have been coordinated enough to lure people to the American parks: “the Canadian national parks, because of their exploitation and because of the things that had been done to make them ready for the comfort and convenience and safety of the tourists, drew the great, wholesale travel. . . That meant thousands upon thousands of dollars of cold American cash for Canada, to be credited to its parks.” Id. at 6. See also S. Rep. No. 64-662 (1916) (discussing why Park Service is necessary and appropriations needed); 53 Cong. Rec. 12, 150 (1916) (hiring decisions given to Secretary of Interior rather than Congress).

[23] National Park Service: Hearing on H.R. 434 and H.R. 8668 Before the H. Comm. on the Public Lands, 64th Cong. 52 (1916) (emphasis added).

[24] Id.

[25] Id. at 53.

[26] Id.

[27] Id. Selfishness was seen as a threat because “[t]he places of scenic beauty do not increase, but, on the contrary, are in danger of being reduced in number and diminished in quantity, and the danger is always increasing with the accumulation of wealth, owing to the desire of private persons to appropriate these places.” Id. at 54.

[28] Id. at 54.

[29] Id. (quoting the British ambassador in November 1912).

[30] Id. at 43-44.

[31] Id. at 46.

[32] Id.

[33] H.R. Rep. No. 64-700, at 1(1916).

[34] Id. at 3.

[35] Id.

[36] 116 Cong. Rec. 24,955 (1970); see also A Bill Relating to the Administration of the National Park System: Hearing on H.R. 14114, Before the H. Subcomm. on National Parks and Recreation of the Comm. on Interior and Insular Affairs, 91st Cong. (1969).

[37] S. Rep. No. 91-1014 (1970); see H.R. Rep. No. 91-1265 (1970).

[38] S. Rep. No. 91-1014 (1970).

[39] Id. at 1–2.

[40] S. Rep. No. 95-528, at 8 (1978).

[41] See id. at 50-57.

[42] Id. at 24.

[43] Id. at 14.

[44] Id.

[45] 124 Cong. Rec. H2017 (daily ed. March 14, 1978) (statement of Rep. Burton).

[46] Id.

[47] Id.

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Judging a Book by its Cover: The Tension between Evidentiary Gatekeeping and Compensatory Theories of Tort

Judging a Book by its Cover: The Tension between Evidentiary Gatekeeping and Compensatory Theories of Tort

By Julie Amadeo, J.D. 2016, New York University School of Law

 This article has been adapted from a larger work.


This post is part of the Environmental Law Review Syndicate.

I. Introduction

Human minds are primed to jump to conclusions. Call them intuitions, or things we just know, our ability to draw conclusions is a survival instinct, developed over many years of evolutionary progress. Now assume a man has been largely healthy his entire life. Maybe this man is a line worker at a factory, or a firefighter, or even just a soccer player. Suddenly, he learns that he has a fatal disease that will cause him to suffer for various years before finally killing him. He sees his co-workers falling ill with the same sickness and they all begin to think it must be something they were doing in common. Perhaps it was the chemicals they produced at work, or something burning in the fires, or maybe the turf they played on. But, there’s no evidence of this, it is just a hunch. Producing conclusive scientific evidence is costly and would take years. Perhaps the only way of getting any sort of evidence is to sue the employer, or products producer which would lead to discovery and possible answers. The man approaches a lawyer who is well known in the field of toxic harms and asks him to take on his case. The lawyer, however, declines and informs the man because of the lack of epidemiological – human study—evidence available on the topic, his case would likely be decided in favor of the defendant on summary judgment and he would never get the closure he is looking for.

II. Wrestling with Epidemiological Evidence

Epidemiology is a method of scientific study which measures the “distribution and determinants of disease frequency and occurrence in humans.”[1] In litigation, epidemiological evidence is generally used for the purpose of proving causation.[2] Historically, epidemiology was not a necessary feature of toxic harms cases, for example in Ferebee v. Chevron Chemical Co. the court took the stance that “on questions such as these, which stand at the frontier of current medical and epidemiological inquiry, if experts are willing to testify that such a link exists, it is for the jury to decide whether to credit such testimony.”[3] The court ultimately held that there was sufficient evidence for the jury to find that the defendant in this case was at fault.[4] However, courts have taken many different approaches to the ways they evaluate and admit epidemiological evidence. Importantly, there seems to be a distinction in the way courts treat epidemiology with respect to mass tort claims and cases where there is either negative or sparse epidemiological evidence to wrestle with.[5]

In a post-Daubert world of evidence, epidemiology is nearly universally accepted as the most reliable form of evidence for demonstrating a toxic harm. However, epidemiological evidence is not easy to come by. Often the only studies that have been performed are studies done by the defendants in the case, which of course are favorable. This desire for epidemiological evidence is born out of the need for evidentiary rules to help the judge move her docket: they provide efficiency and reliability in the courtroom. In contrast, tort law has developed with the aim of providing deterrence to bad actors and compensating victims of negligent acts. These two different legal systems are at odds when rules that help judges move their dockets also impair the ability for the tort system to evenly sort out and find negligent actors and make them pay the victims they have harmed.

Alternative solutions to the tort system, particularly administrative systems of dispute resolution, seem to hold promise for sorting out the tension between the two systems. An administrative system provides a mechanism for sorting out good evidence from the bad, and sorting out toxic from not toxic products, prior to the dispute resolution process. In contrast with a compensation fund system, which merely compensates victims without really providing the deterrence effects that tort law provides, an administrative system would deter negligent actors by putting them on notice that their product has been noted as toxic. Additionally it would compensate victims and also provide a cheaper way for them to get their “day in court” as they would not have to necessarily prove causation.

III. Artificial Turf: A Case Study

In 2008, the Attorney General of California brought suits against the Beaulieu Group and Fieldturf USA to enjoin their use of lead in artificial turf that was sold within the state of California.[6] Strikingly, the state of California had accepted over a decade prior to this suit being brought that lead was toxic and could lead to cancers and other health issues.[7] Because the State had already named lead as toxic, the plaintiff was able to conclusively state in the complaint that lead could lead to various illnesses and could definitely state the various methods of exposure humans would be submitted to by lead being present in the product.[8] In this case, the suit resulted in a settlement,[9] and while a large part of the desire to settle likely derived from the fact that the Attorney General brought the suit on behalf of the People of California, there was also a likely calculation relating back to the strength of the previously accepted science and thus the strength of the case. Perhaps, it is something like this type of certainty or strength of the evidence that the rules that have been developed regarding the admissibility of expert evidence and  epidemiological evidence specifically, are attempting to strive toward, in particular with respect to an argument regarding the efficiency of the dispute. Where defendants are sure that they will be found negligent in tort they will be more likely to resolve the issues out of court, or perhaps even refrain from the behavior where they uncover strong epidemiological evidence outside the universe of a lawsuit.

Artificial turf has come under fire for various toxic and environmental harms, broadly defined, in recent years. For example, in the world of sports, artificial turf has long been vilified for causing unprecedented and beyond normal injuries in athletes at an increased statistical rate when compared to natural grass.[10] Harkening back to claims of efficiency and deterrence, it has been argued that the best way to deter manufacturers of artificial turf from promoting the product is to embroil these manufacturers in litigation and hold them accountable for injuries.[11] However, attempts to bar the use of this turf by the National Football League Players Association in the 1970’s were undermined by insufficient medical data.[12] This was in face of a study done for the NFL by the Stanford Research Institute in 1974, demonstrating that natural grass is safer to play on than artificial turf, across the board.[13] Yet the U.S. Consumer Product Safety Commission still found that “based on evidence presently available, the use of artificial turf as a surface cover for athletic playing fields does not present an unreasonable risk of injury.”[14] Recently, the same year that the California Attorney General was granted an injunction against artificial turf companies for their use of lead, the same agency evaluated various samples of artificial turf and found that the “evaluation showed that newer fields had no lead or generally had the lowest lead levels.”[15] The discrepancy between the results, on the same or similar issues, before different law making bodies within the United States demonstrates why the rules which have developed on the admissibility of epidemiological evidence are important despite the various criticisms of them. For courts to deliver consistent results regarding issues of toxic harms, there needs to be a standard measuring stick. However, the issue remains that science and the law have different ideas of causation, and thus what science finds unsafe and what the law finds unsafe might differ. In the above scenario, California was able to go around the toxic harm tort causation issue by passing legislation. It remains to be seen whether a legislative command is always necessary to resolve possibly ambiguous causal issues in toxic harms. Perhaps, there are other alternatives either within the court system, or in an alternative dispute arena that would allow these issues to be resolved in a way that is both “fair” as well as practically effective.

A. Artificial Turf and Cancer

Another area of contention in the world of artificial turf is a potential link between the rubber tire crumbs used in the product and cancer. Recently, many concerned citizens have noticed and pointed out a correlation between cancer and artificial turf, especially among young athletes.[16] Crumb rubber was a solution created by engineers in the 1990’s as a method of recycling old rubber tires that were no longer useful.[17] This recycled material is then used to fill the artificial turf and provided stability and shock prevention to the turf.[18] However, since this solution arrived, studies have been done demonstrating that the tire crumbs, or crumb rubber, is laden with carcinogenic toxins.[19] The main problem is that despite this finding there is still a dearth of research on crumb rubber and its side effects, particularly when it comes to the human population.[20]

The Environment and Human Health organization produced a report based on studies done by various organizations on this issue.[21] Of these studies, only one of them is epidemiological.[22] This study, produced by the California Office of Environmental Health Hazard Assessment found that the levels of toxicity in artificial turf with crumb rubber filling were relatively low.[23] However, this study and others done by the same agency on crumb rubber, were funded by CalRecyle, the California state agency in charge of finding methods of recycling used rubber tires.[24] This presents a conflict of interest that neither Rule 702 nor the Daubert doctrine, and much less the current jurisprudence on epidemiological evidence, deals with. Courts would look to the epidemiological evidence provided and likely would conclude that there was insufficient evidence to present to a jury.[25] Yet, outside the courtroom, various agencies involved admit that there is a lack of sufficient evidence to draw the conclusions about the toxicity of the crumb rubber that have been drawn. In 2013, chairman of the Consumer Product Safety Commission, Eliot Kaye admitted that there was not enough evidence to draw conclusions as to safety.[26] This is the same commission which previously issued a press release stating this turf is safe in 2008.[27]

The Consumer Product Safety Commission is not the only agency that is calling for more research to be done on artificial turf and crumb rubber. In 2016, the Environmental Protection Agency, in conjunction with the Consumer Product Safety Commission and the Centers for Disease Control and Prevention as well as Agency for Toxic Substances and Disease Registry launched an action plan to study these issues.[28] Despite this, any argument brought before a court of law regarding the lack of evidence on this issue would fail, because it is not the job of the courts to decide which chemicals are toxic, it is merely the job of the court to proportion blame when issues arise out of negligent actions. Thus, it is not surprising that a lawsuit brought by the San Francisco Bay Chapter of the Sierra Club alleging that the San Francisco Recreation and Park Department did not do sufficient research on the issue of crumb rubber to determine that the toxicity in the artificial turf met the acceptable levels of toxins set by the local government ended in an unfavorable result.[29] On appeal, the Court of Appeals found that the report done in advance of the Beach Chalet project that was the center of the Sierra Club’s suit was adequate.[30]

Although, some might argue that given what is known and what is not known about the state of toxins within artificial turf and the crumb rubber that is used to fill it, a rule of evidence that does not allow information about this type of uncertainty is broken, the court’s stance on epidemiological evidence allows the court to manage a docket of cases and legal decisions about scientific problems in an efficient manner. Ultimately, it is the role of the legislature in conjunction with the scientific community to make policy decisions about what the acceptable amount of risk is when it comes to daily human interaction with toxins. Unfortunately, this leaves concerned citizens, and injured parties waiting for the holes in the science to be filled in by government actors and other nonprofit organizations in order to receive compensation for the issues that have been caused by the toxins. However, the resolution of the issues with regard to the presence of lead in artificial turf sheds some light on alternative solutions to the issue of toxic harms outside of the courtroom.

Again, the various cases dealing with artificial turf sheds light on the tension between evidentiary gatekeeping and compensatory theories of tort. While it is undeniable that more research could be done on artificial turf, toxicity studies have been done that demonstrate a baseline issue. Viewing these facts from the perspective that courts and court dockets must optimize efficiency, perhaps it makes sense that no compensation for plaintiffs can be awarded until a cut and clear chain of causation can be examined via the widely accepted epidemiology. However, in a system where companies are often influenced by risk of litigation and are the most able to study the products they offer to the public, having a compensatory tort system that precludes valid expert evidence on theories of reliability forecloses the court as a venue for certain plaintiffs and allows companies to get away with actions that might be unsavory. In this sense, the amount of litigation surround artificial turf, which is only beginning to lead to further research, represents a system failure wherein strict evidentiary gatekeeping encourages scant scientific research of potentially harmful consumer products.

B. Artificial Turf Outside the Tort System

There are two alternatives to remedies within the tort system: an ex ante administrative regulation system and a compensatory administrative system in the form of a victim’s compensation fund. Either system is designed to provide a solution to the problem presented by the admissibility of epidemiological evidence: causation.[31] However, whereas an ex-ante administrative regulation system is meant to deter and prevent toxic harms from occurring by identifying and prohibiting certain toxins from entering the market, an administrative compensatory system merely identifies and acknowledges harms that have occurred and compensates victims without the need for a full trial, though that process can take many forms. An administrative system could be designed in a variety of ways, however the benefits lie in the government assigning fault to actors without the need for trial.[32] Even outside a strict administrative system government involvement could take place in a variety of ways: as the settlement in the Beaulieu case suggests, actors are more likely to settle when a government actor is involved.[33] Government actors lend authority and facility to toxic harm suits by making it more likely that there will be injunctive relief and that negligent actors will settle suits.[34] Perhaps then, if government actors are required to fully accomplish the goals of tort law,[35] it would make sense to move fully from a system of tort to an administrative system where the government would decide fault based on a system of allocating the risk. Ex-ante government action is already taken in situations where certain types of behavior are regulated by administrative agencies.[36] Practically, an administrative system of allocating risk could be done either ex-ante, like regulation, or ex-post, like litigation.[37] However, in the case of toxic harms, because lack of proof and lack of notice tend to be issues, ex-ante processes may make the most sense in providing plaintiffs and potential litigants with swift and efficient justice.[38]

It has been argued that the tort system does little in terms of deterring, correcting, and compensating victims in the area of toxic harms due to the issues of causation that have largely been the focus of this paper.[39] Administrative systems of dispute resolution in the area of toxic harms would provide all the benefits that agencies are already lending to issues such as the artificial turf problem: specialist knowledge, independent investigations, flexibility with the ex-ante vs. ex-post view of the problems, as well as the ability to make policy decisions that are not within the ambit of the court.[40] There are various models of administrative systems including a tort and no-fault hybrid system, a narrowly tailored no-fault system, a broad no-fault system, a strict liability system, or a complex assessment of risk system.[41] These systems will be laid out briefly for the sake of comparing their various virtues and applying them to the case at hand.[42]

C. Models of Administrative Systems

The hybrid tort and no-fault administrative system is visible in the Price-Anderson Act that was promulgated with the purpose of promoting the development of nuclear testing and innovation in the scientific community.[43] The statute sets up a system where licensees under the statute must keep a certain amount of insurance and waive immunity from public liability.[44] The licensees are covered both by private insurers and by fees paid into a pool administered by the Nuclear Regulatory Commission.[45] Rabin suggests, that the hybrid characterization comes from the fact that the insurance model makes it a no-fault system, however the provision for private actors to bring a claim in order to receive compensation from the insurance creates a two-party system akin to torts.[46]

The model for the narrow no-fault system, according to Rabin, is the National Childhood Vaccine Injury Act of 1986.[47] The program lays out in a table a time period during which the injury related to the vaccine must occur in order of the victim to receive compensation.[48] This chart eliminates the question of causation. Thus a no-fault system is created where the “compensation fund is financed by an excise tax on each does of vaccine disbursed.”[49] This act was also promulgated with the purpose of stimulating private industry and insulating risky business for the public good from tort liability.[50]

An expansive no-fault system is modeled in both the Superfund Section 301(e) Student Group Report and the Environmental Law Institute Model Statute.[51] Due to the environmental nature of the case studies presented in this paper, we will focus on the Environmental Law Institute Model Statute (ELI Model). The ELI Model seeks to provide a truly regulated body of toxic chemicals by listing as one of its stated purposes “to reduce and prevent exposure to hazardous chemical substances or mixtures that cause or contribute to chronic or progressive diseases.”[52] The model sets up a strict liability system for substances or diseases covered within the proposed statute but leaves open a back door of discretion for the court to limit the liability of defendants if the defendants can show by a preponderance of the evidence that there were other factors involved in the plaintiffs illness.[53] The model allows for switching out of the administrative system back into the torts system, however Rabin notes that the lack of a possibility for switching from the torts system to the administrative system “once the hazardous nature of a product is well documented” is problematic.[54]

Clifford Fisher points out the many inefficiencies in the tort system when proposing his switch to a strict liability system: namely, that the burden of proof rests with the victim who likely does not have the access or resources to get the information they need to put on their case.[55] He goes so far to suggest, “the present system also creates a disincentive for risk-creators to act responsibly because it is not in their best economic interest to do so.”[56] In essence, he is suggesting that the tort system does not achieve deterrence of negligent actors nor compensation of victims in the realm of toxic harms. Instead, he suggests a strict liability system called an Environmental Compensation program, comparable to the Worker’s Compensation program where victims would file their claims to an insurance company.[57] This would allow the market to regulate the cost of risk, in so far as companies pay into the insurance system, which would incentivize risk takers to take the cost of that risk into account when planning business costs.[58] Fisher envisions, in addition to the deterrence effects afforded by companies paying into an insurance system, minimum health regulations that would help maintain socially acceptable levels of risk.[59] One last feature of Fisher’s proposal is to have a proportional liability system that “holds the risk-creator liable for the increased risk and for the losses of each victim of disease in the exposed population discounted by the probability that the risk-creator’s hazardous activity was the cause.”[60]

The most recent administrative system proposed is Albert Lin’s, which creates an internalized system of risk with federal levies imposed on sources of pollution.[61] Lin’s proposal would have the levies imposed be proportional to the amount of pollution released by sources.[62] The system does not supersede the tort system, but merely preempts claims that are foreseen and thus covered by the funds collected by the government.[63] However, his proposal does not allow individuals to opt out of the system, thus leaving the administrative system as the only recourse for the covered claims.[64] Lin’s proposal avoids the causation issue by awarding compensation for exposure to risk, not for injury in fact.[65] The last part to Lin’s proposal involves the use of database which would identify different toxins that would be covered under the administrative system; he suggests use of one of two already existing databases: the Agency for Toxic Substance and Disease Registry or the EPA’s Integrated Risk Information System.[66] While either of these databases would need to be updated with the help of the scientific community, Lin acknowledges that the informational needs of this system would be expansive.[67]

While an administrative system offers various tools to solve the problem of victims being compensated for their harms, they do not necessarily offer the best solution to this problem in terms of toxic and environmental harms. Certain no fault systems, such as the Price-Anderson Act and the National Childhood Vaccine Injury Act of 1986 were developed to encourage use of certain products which could be considered, or are, toxic.[68] In the case of environmental and toxic harms, the hope is to deter actors from using and abusing these chemicals rather than encourage them by giving them an easy out. The one improvement afforded by even an encouraging no fault system, is that a no fault system guarantees some compensation for victims, whereas a courtroom without epidemiological evidence guarantees failure. In an indirect way, a no fault system might require companies to think about the toxic harms they might be causing and weigh them, whereas as a court system that has created a loophole for these actors does not deter the behavior at all. Thus, although not fully resolving the tension between evidentiary gatekeeping and compensatory theories of tort, an ex-ante system relieves plaintiffs of evidence production that would allow for compensation without having to think about which evidence works best and then searching for that form of evidence among the research that is available on the topic.

Administrative systems such as the ELI model or Albert Lin’s proposal have heavy informational burdens. Thus, these proposals may suffer in areas such as environmental and toxic harms where the science is often catching up to the realities of plaintiffs’ situations. For example, in Lin’s proposal, if the harm has not yet been recognized by the database, the claim will then be kicked back into the court system, which defeats the purpose of creating a separate administrative system. These informational issues that are related to whether a claim goes into the administrative system or are litigated in tort create a dual system of treating claims that are relatively similar.

In the case of artificial turf, the administrative proposals would perhaps present a halfway solution to the problem presented by a need for epidemiological evidence. As the Beaulieu case demonstrates, if the toxin is recognized on a list either one presented by the administrative proposals, or one already in existence, then the administrative proposals for strict liability present a more manageable system that affords compensation without administrative costs in terms of evidentiary gatekeeping. However, in the case of crumb rubber, because more research on the issue is underway these systems just will not fix the current issue presented by the need for epidemiological evidence in order to put on a successful toxic harms case. In an ideal world, an administrative system proposal might have a wider statute of limitations window, not for latent harms, but for victims of harms that are newly discovered. So, if in five years a link were found between crumb rubber and cancer sufficient to put crumb rubber on the list for strict liability, a victim or victim’s estate could bring a claim at that time.

Another out of court solution to the issue of causation in environmental harms is the creation of victim compensation funds. Victim compensation funds have been used in situations of mass tort, for example September Eleventh, Agent Orange, and the Love Canal.[69] They are funds that pay out to victims of major accidents, natural disasters, and the like without respect to whether the insurer was the party at blame or not.[70] Typically, they shift the standard of care from negligence, used most often in the tort system, to strict liability, which is used sparingly.[71] A compensation fund can act similarly to an administrative system, for example having a no fault opt in system.[72] However, unlike administrative systems that typically have some criteria to be met before payout can occur, many compensation funds merely require victims to demonstrate they meet certain prerequisites, in order to keep evidentiary burdens low.[73] While the legal justifications for tort law include deterrence and compensation, the victims who file suits often begin seeking answers—but in the compensation fund system forego the answers they seek for compensation.[74] Administrative compensatory systems only present a solution to the tension between evidentiary gatekeeping and compensatory theories of tort if the evidentiary hurdles are less stringent than they are in a courtroom. Ex-ante administrative systems demonstrate a different approach to the acceptance of evidence; compensatory schemes, such as the September Eleventh fund, merely demonstrated the acceptance of causation where the cause is readily and easily ascertained. Thus, it is less clear that a compensatory scheme would provide a good solution or alternative to the tort system in the case of toxic harms.

Maritime law provides an example of a system which is a hybrid of the administrative system and compensation fund systems in the environmental realm, where the polluter pays the victims of its pollution[75]. However, as previously mentioned, this overlaps with administrative systems in many ways: polluter pays principle can be applied to civil liability cases, or the principle can be applied through an administrative trial.[76]

In the case of artificial turf, a compensation fund system may be different to plan and administer. For example, in the Benedictin cases, the medication that the scientists found and were published in the medical journals, demonstrated some fear and apprehension in the medical community that the drug was causing genital defects.[77] In the artificial turf cases this link in the scientific community is missing. In this manner, the compensation fund system is more similar to the actual tort system than an outside the tort system. Here, both suffer from an evidentiary causation problem: where there is missing information or linkage, the chances of compensation become slimmer and slimmer. Ultimately, it seems that between the administrative system and the compensation fund system, the administrative fund something is the better choice for smaller legal battles spread over many defendants with uncertainty.

IV. Conclusion

This paper has explored the tension between evidentiary rules that aim to foster reliability and efficiency with tort law whose purpose is to provide deterrence and compensation. There doesn’t seem to be one solution which would perfect the system to provide deterrence and reliability at the same time. What does seem apparent is that an administrative system, with a fact finding and research arm outside the dispute resolution system would provide a faster method of victims to be compensated for wrongs, and for those harms to be recognized widely without the need for epidemiological evidence in a court room. However, that conclusion presupposes that the administrators of a system would be proactive in researching potentially harmful chemicals, and also that findings that do not stem from epidemiology will be accepted.

The other potential solution to this issue would be to find a way in an adversary system for there to be a rule that allows evidence in which would not unfairly privilege one party over the other. However, since the rules are based on efficiency and reliability, not fairness, this does not seem to be relevant, nor would it function to improve the system. One question that begs to be asked is why not move from aims of reliability, efficiency, deterrence, and compensation to fairness? Firstly, those aims and justifications are attempting to get at versions of fairness. Secondly, it is impossible to be truly fair in a system where we entertain different versions of the same story and put decision making in the hands of impartial, but ultimately human jurors.

[1] Michael Dore, Law of toxic Torts §28:1 (3rd ed. 2015).

[2] James T. O’Reilly, 1 Toxic Torts Prac. Guide §4:6 (2015).

[3] Ferebee v. Chevron Chem. Co., 736 F.2d 1529, 1534 (D.C. Cir. 1984)

[4] Id. at 1539.

[5] David L. Faigmna, et. al., 3 Mod. Sci. Evidence § 23:4 (2016) (“Complete order cannot be imposed on the different positions taken by the courts as to whether the plaintiff must present epidemiological data on general causation. The two following distinctions, however, explain many apparent inconsistencies: (a) whether the case involves a mass tort or not; and (b) whether there is adverse epidemiology or no epidemiological evidence at all.”)

[6] Consent Judgment as to Defendant Beaulieu Group ¶ 2-15, ECF RG 08407310; Consent Judgment as to Defendant Fieldturf USA, Inc. ¶ 2-15, ECF RG 08-407310.

[7] Compl. ¶ 20, ECF 08407310; although the legislative history for this regulation was not accessible at the time of writing, the author notes that the inclusion of lead as a toxic chemical was likely the result of scientific study which would have been probative within the scope of this paper.

[8] Id. at ¶ 22.

[9] Michael D. Green, Expert Witnesses and Sufficiency of Evidence in Toxic Substances Litigation: The Legacy of Agent Orange and Benedictin Litigation, 86 Nw. U. L. Rev. 643, 646 (1992) (discussing types of evidence that can demonstrate causation and why epidemiology is particularly favorable).

[10] Allan Mazur and Jennifer Bretsch, Looking Back: Synthetic Turf and Football Injuries, 10 Risk: Health, Safety & Env’t 1, 2 (1999).

[11] Nicholas P. Ruggiero, Are the Rights of Athletes Swept under the Carpet?, 3 Seton Hall J. Sport L. 237, 243 (1993) (assuming that artificial turf is in fact harder on the bodies of athletes than natural grass and determining the best ways to deter the advocacy of the product).

[12] Brian J. Duff, Game Plan for a Successful Products Liability Action Against Manufacturers of Artificial Turf, 5 Seton Hall J. Sport L 223, 231 (1995) (pointing to NFLPA grievances filed with the U.S. Consumer Products Safety Commission).

[13] John Underwood, Just an Awful Toll, Sports Illustrated, Aug. 12, 1985, http://www.si.com/vault/1985/08/12/620602/just-an-awful-toll.

[14] United States Consumer Product Safety Commission, CPSC Denies Petition on Artificial Turf and Lead Levels in Paint, CPSC.gov, Sep. 3. 1976 (Feb. 17, 2016, 1:10 am), http://www.cpsc.gov/en/newsroom/news-releases/1976/cpsc-denies-petitions-on-artificial-turf-and-lead-levels-in-paint/.

[15] United States Consumer Product Safety Commission, CPSC Staff Finds Synthetic Turf Fields OK to Install, OK to Play On, CSPC.gov, Jul. 30, 2008 (Feb. 19, 2016, 11:07 pm), http://www.cpsc.gov/en/newsroom/news-releases/2008/cpsc-staff-finds-synthetic-turf-fields-ok-to-install-ok-to-play-on/.

[16] Julie Foudy, Turf Wars: How Safe are the Fields where we Play?, ESPNW, Nov. 24, 2105 (Feb. 27, 2016, 7:23 PM), http://espn.go.com/espnw/news-commentary/article/14206717/how-safe-fields-where-play (opening with an anecdote about Coach Amy Griffith keeping a list of all of the athletes who have developed lymphoma cancers, which are rare for the age group of the athletes).

[17] Id.

[18] Julia Cheever, Beach Chalet Fake Grass Survives Appeal, Bay City News, Oct. 1, 2015 (Feb. 28, 2016, 7:52 PM), http://sfbay.ca/2015/10/01/beach-chalet-fake-grass-survives-appeal/.

[19] Environment and Human Health, Inc., Artificial Turf: Exposures to Ground up Rubber Tires – Athletic Fields, Playgrounds, Garden Mulch, Environment and Human Health, Inc. (Feb. 27, 2016, 7:44 PM), http://www.ehhi.org/reports/turf/health_effects.shtml (discussing different studies which have found cancer to be linked to crumb rubber).

[20] Supra, Foudy.

[21] Supra, Environment and Human Health, Inc.

[22] This is based on the studies provided via hyperlinks that are still functioning on the EHHI’s website. They can be found here: http://www.ehhi.org/reports/turf/health_effects.shtml. See, Office of Environmental Health Hazard Assessment, Evaluation of Health Effects of Recycled Waste Tires in Playground and Track Products, Integrated Waste Management Board, January 2007 (February 28, 2016, 11:30 AM) http://www.calrecycle.ca.gov/publications/Documents/Tires%5C62206013.pdf.

[23] Office of Environmental Health Hazard Assessment, Evaluation of Health Effects of Recycled Waste Tires in Playground and Track Products, Integrated Waste Management Board, January 2007 at 1-3 (February 28, 2016, 11:30 AM) http://www.calrecycle.ca.gov/publications/Documents/Tires%5C62206013.pdf.

[24] Supra, Foudy.

[25] See generally, Magistrini v. One Hour Martinizing Dry Cleaning, 180 F. Supp. 2d 584 (D.N.J. 2002); Baldonado v. Wyeth, 2012 WL 1965408 (N.D. Ill. 2012).

[26] Supra, Foudy.

[27] Supra, United States Consumer Product Safety Commission.

[28] United States Environmental Protection Agency, Federal Research on Recycled Tire Crumbs Used on Playing Fields, EPA.gov, February 18, 2016 (Feb. 28, 2016, 2:00 PM), http://www.epa.gov/chemical-research/federal-research-recycled-tire-crumbs-used-playing-fields.

[29] Sierra Club appeals Beach Chalet court decision that ignores critical safety hazards, Sierra Club Yodeler, Jan. 30, 2014 (Feb. 28, 2016, 6:34 PM), http://theyodeler.org/?p=9013.

[30] Julia Cheever, Beach Chalet Fake Grass Survives Appeal, Bay City News, Oct. 1, 2015 (Feb. 28, 2016, 7:52 PM), http://sfbay.ca/2015/10/01/beach-chalet-fake-grass-survives-appeal/.

[31] Robert L. Rabin, Some Thoughts on the Efficacy of a Mass Torts Administrative Compensation Scheme, 52 Md. L. Rev. 951, 952 (1993) (“Critics have argued, in essence, that the present tort system, designed to achieve corrective justice goals in simple two-party accidental harm cases, is not well-constituted to adjudicate effectively mass toxics episodes, where litigation involves identifying the sources of long-latent disorders, resolving a vast array of probabilistic causation issues, dealing with enormous numbers of parties widely distributed geographically, and other related complications.”).

[32] Id. at 954.

[33] See supra note 6, in this case the lawsuit was brought by the Attorney General of the state, but it was within the tort litigation system.

[34] James T. O’Reilly, 2 Toxic Torts Prac. Guide §28:3 (2015)

[35] Rabin, supra, at 952 (noting that torts are most effective when the damages are related to the injury, the claimants are involved in the litigation, costs are low, trials are speedy, and the award provides incentive for deterrence).

[36] Albert C. Lin, Beyond Tort: Compensating Victims of Environmental Toxic Injury, 78 S. Cal. L. Rev. 1439, 1461 (2005).

[37] Id. at 1462.

[38] Id.

[39] Id. at 1452-1459, 1465.

[40] Id. at 1465.

[41] Rabin, supra, at 955-962 (describing the administrative systems behind the Price-Anderson Act, National Childhood Vaccine Act of 1986, and Environmental Law Institute Model); Clifford Fisher, The Role of Causation in Science as Law and Proposed Changes in the Current Common Law Toxic Tort System, 9 Buff. Envtl. L.J. 35, 131 (2001) (describing a system that deals with the failure of causation in mass torts to bring sufficient deterrence); Lin, supra, at 1487 (describing a system where the government would use the newest forms of technology available to it to draw conclusions about risk assessment across a wide variety of industries).

[42] This section will utilize the methodology and theories laid out in the articles in note 113, supra.

[43] Rabin, supra, at 955; 42 U.S.C. § 2210 (2006).

[44] 42 U.S.C. § 2210 (2006).

[45] Id.

[46] Rabin, supra, at 955-57.

[47] Rabin, supra, at 958; 42 U.S.C.A. §300aa-33 (2003).

[48] 42 U.S.C.A. § 300aa-14 (1993, published by Westlaw 2015).

[49] Rabin, supra, at 960.


[51] Rabin, supra, 960; Jeffrey Trauberman, Statutory Reform of “Toxic Torts”: Relieving Legal, Scientific, and Economic Burdens on the Chemical Victim, 7 Harv.Envtl.L.Rev. 177, 250-96 (1983).

[52] Trauberman, supra, at 251.

[53] Id. at 258.

[54] Id. at 284-286; Rabin, supra, at 961-62.

[55] Fisher, supra, at 131.

[56] Id.

[57] Id. at 143.

[58] Id. at 144.

[59] Id.

[60] Id. at 150.

[61] Lin, supra, at 1486.

[62] Id. at 1487.

[63] Id. at 1488.

[64] Id.

[65] Id. at 1490.

[66] Id. at 1491.

[67] Id.

[68] See, infra.

[69] Kenneth S. Abraham,  Individual Action and Collective Responsibility: The Dilemma of Mass Tort Reform, 73 Virginia L. Rev. 845 (1987).

[70] Id.; Gillian K. Hadfield, Framing the Choice between Cash and the Courthouse Experiences with the 9/11 Victim Compensation Fund, 42 L. & Soc. Rev. 645, 647 (2008).

[71] Id. at 854-55.

[72] Rochelle Chodock, et. al. “Insuring” the Continued Solvency of Pharmaceutical Companies in the Face of Products Liability Action, 40 Tort Trial & Ins. Prac. L. J. 997, 1000 (2005) (proposing a compensation fund or private insurance fund that would support pharmaceutical groups).

[73]Hadfield, supra, 647 (describing how some victims would have preferred to use the court system to filling our a form).

[74] Jill Schachner Chanen, Accounting for Lives, 93 ABA J. 58, 59 (describing the story of the mother of one victim who acknowledged that she was giving up the answers she sought for compensation).

[75] Chen-Ju Chen, The Liability and Compensation Mechanism under International Marine Environmental Law, LOSI Conference Papers (2012).

[76] Id.

[77] Abraham, supra, 855.

Constitutions & the Environment: Comparative Approaches to Environmental Protection and the Struggle to Translate Rights into Enforcement

Constitutions & the Environment: Comparative Approaches to Environmental Protection and the Struggle to Translate Rights into Enforcement

Kyle Burns* This post is part of the Environmental Law Review Syndicate. Read the original here and leave a comment. Introduction Every nation around the world faces ecological hardships. Almost every nation has responded with a legal regime that attempts to ensure environmental protection. These […]